Zandi v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MEHDI ZANDI, Case No. 3:18-cv-02235-SB

Plaintiff, OPINION AND ORDER

v.

UNITED STATES OF AMERICA,

Defendant.1

BECKERMAN, U.S. Magistrate Judge.

Mehdi Zandi (“Zandi”) brings this FTCA action against the United States, alleging a

negligence claim related to TSA’s handling of his checked luggage. The United States moves to

dismiss Zandi’s complaint under Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction,

or, alternatively, for summary judgment under Fed. R. Civ. P. 56. The Court has jurisdiction over

1 The United States of America (“United States”) is the proper defendant in this Federal

Tort Claims Act (“FTCA”) action. See Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th

Cir. 1998) (“Because the United States is the only proper party defendant in an FTCA action, the

district court correctly dismissed her complaint as improperly filed against the [United States]

Postal Service and [Postmaster General].”). Accordingly, the Court grants the United States’

unopposed request to dismiss the United States Transportation Security Administration (“TSA”)

“as a party to this action and amend the caption to reflect the United States as the sole

defendant.” (Def.’s Mot. to Dismiss or in the Alt. for Summ. J. (“Def.’s Mot.”) at 1 n.1.)

this matter pursuant to 28 U.S.C. § 1346(b)(1). For the reasons explained below, the Court denies

the United States’ motion to dismiss and motion for summary judgment.

BACKGROUND

In January 2017, Zandi flew from Tehran, Iran, to Los Angeles, California, via

Amsterdam and Portland. (Decl. Alison Milne Supp. Def.’s Mot. (“Milne Decl.”) Ex. 1, at 2-5.)

Zandi checked four pieces of luggage which contained, among other things, artisanal candies,

jams, and copperware wrapped in bubble wrap. (Milne Decl. Ex 1, at 2-3.)

Before arriving in Los Angeles, U.S. Customs and Border Protection at the Portland

International Airport screened Zandi and his luggage. (Milne Decl. Ex. 1, at 4.) Plaintiff then

rechecked his luggage and boarded his connecting flight to Los Angeles. (Milne Decl. Ex. 1, at

4.) Upon arriving in Los Angeles, Zandi discovered that three of his bags were missing. (Milne

Decl. Ex. 1, at 5.) A courier agency delivered the missing luggage to Zandi two days later.

(Milne Decl. Ex. 1, at 5.)

When Zandi opened his missing luggage, he discovered, among other things, that his

copperware, artisanal candies, and jams were damaged. (See Milne Decl. Ex. 1, at 8.) In addition,

Zandi discovered that one of his missing pieces of luggage had “a TSA Notice of Inspection

inside of it,” and all of his missing luggage had “TSA tape on the outside[.]” (See Milne Decl.

Ex. 1, at 6.)

Based on these events, Zandi filed this FTCA action against the United States in

December 2018. In his complaint, Zandi alleged that TSA breached its “duty of care by not

properly caring for [his] goods, by losing pieces, by improperly re-wrapping them, and by

scratching, denting, and puncturing them.” (Compl. ¶ 20.) During discovery, Zandi

acknowledged that his “luggage was handled by third parties aside from the TSA,” and he was

“unaware of what the condition of the contents in [his] checked luggage was at any point after

[he] checked the luggage in Tehran until [he] regained control of [the luggage two days after

arriving] in Los Angeles[.]” (Milne Decl. Ex. 1, at 4-6.)

DISCUSSION

I. SUBJECT MATTER JURISDICTION

The United States moves to dismiss Zandi’s complaint under Fed. R. Civ. P. 12(h)(3) for

lack of subject matter jurisdiction.2 The United States argues that TSA’s repackaging of luggage

following a security screening falls within the discretionary function exception to the FTCA, and

therefore the Court lacks subject matter jurisdiction. See generally GATX/Airlog Co. v. United

States, 286 F.3d 1168, 1173 (9th Cir. 2002) (“Where the [discretionary function] exception

applies, the court lacks subject matter jurisdiction.”).

A. Applicable Law

“The FTCA waives the government’s sovereign immunity for tort claims arising out of

negligent conduct of government employees acting within the scope of employment.” Morales v.

United States, 895 F.3d 708, 713 (9th Cir. 2018) (citing 28 U.S.C. § 1346(b)(1)). This waiver

under the FTCA “allows the government to be sued ‘under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with the law of the place

where the act or omission occurred.’” Id. (citation omitted). An exception to “this broad waiver

of sovereign immunity [is] called the discretionary function exception[.]” Id. This exception

“provides immunity from suit for ‘[a]ny claim . . . based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on the part of a federal agency or

2 “The matter of subject matter jurisdiction . . . may be raised by the parties at any time

pursuant to Fed. R. Civ. P. 12(h)(3)[.]” Augustine v. United States, 704 F.2d 1074, 1075 n.3 (9th

Cir. 1983).

an employee of the Government, whether or not the discretion involved be abused.’” Id. (citation

omitted).

The purpose of the discretionary function exception is “to prevent ‘judicial second

guessing of legislative and administrative decisions grounded in social, economic, and political

policy through the medium of an action in tort.’” Morales, 895 F.3d at 713 (quoting United

States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814

(1984)). The United States bears the burden of demonstrating that the discretionary function

exception applies in a given case. Id. (citing Prescott v. United States, 973 F.2d 696, 702 (9th

Cir. 1992)).

In Berkovitz v. United States, the Supreme Court established a two-step process for

determining the applicability of the discretionary function exception. See 486 U.S. 531, 536

(1988). The court must “determine first whether the act is ‘discretionary in nature,’ which

necessarily involves an ‘element of judgment or choice.’” Morales, 895 F.3d at 713 (quoting

United States v. Gaubert, 499 U.S. 315, 322 (1991)). This “‘judgment or choice’ requirement is

not met where a ‘federal statute, regulation, or policy specifically prescribes a course of action

for an employee to follow.’” Id. (quoting Berkovitz, 486 U.S. at 536). To be sure, “‘[i]f there is

such a statute or policy directing mandatory and specific action, the inquiry comes to an end

because there can be no element of discretion when an employee has no rightful option but to

adhere to the directive.’” Id. (quoting Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir.

2008)).

“If discretion is involved, then [the court must] consider whether the discretion ‘is of the

kind that the discretionary function exception was designed to shield’—namely, ‘only

governmental actions and decisions based on considerations of public policy.’” Morales, 895

F.3d at 713 (quoting Berkovitz, 486 U.S. at 536-37). The phrase “public policy” has “been

understood to mean considerations ‘grounded in social, economic, and political policy.’” Id.

(quoting Varig Airlines, 467 U.S. at 814). “The focus is on whether the actions are ‘susceptible

to a policy analysis,’ not whether the government actually took such public policy [judgments]

into consideration when making the decision.” Id. (quoting Miller v. United States, 163 F.3d 591,

593 (9th Cir. 1998)).

B. Analysis

The United States argues that the discretionary function exception bars Zandi’s

negligence claim because “TSA employees necessarily have significant discretion to determine

the precise manner in which checked baggage is screened and subsequently re-packaged and

such decisions are grounded in consideration of economic and public policy factors.” (Def.’s

Mot. at 13.) In support of its argument, the United States relies on TSA’s Standard Operating

Procedure (“SOP”), which provides, inter alia, that “TSA should carefully and neatly repack

checked baggage that is inspected,” but “does not require that [TSA] repack items removed

during the inspection process in exactly the same manner in which they originally were packed

by the passenger.” (Decl. Brent Schwab (“Schwab Decl.”) ¶ 12.) TSA does not require “more

specific expectations for repacking checked baggage” because it “would result in a diversion of

screening personnel’s time and attention away from their critical security mission.” (Schwab

Decl. ¶ 14.)

The Court finds the district court’s decision in Zeng v. United States, No. 14-cv-3924,

2016 WL 8711090, at *1-7 (E.D.N.Y. Sept. 30, 2016), instructive here because, like this case, it

involved negligence claims related to TSA’s alleged handling of checked luggage and the United

States’ argument that the discretionary function exception barred the plaintiff’s negligence

claims.

In Zeng, the plaintiff traveled from New York to Guangzhou, China, with a layover in

Hong Kong. 2016 WL 8711090, at *2. The plaintiff checked an antique object shaped like a

dragon. Id. The plaintiff packed the dragon inside of boxes and used Styrofoam to secure it. Id.

When the plaintiff arrived in Guangzhou, he learned that his dragon had not arrived with him to

the airport. Id. A third party delivered the dragon the next day and the plaintiff discovered that it

had been damaged. Id. Although the plaintiff did “not know how or where the [dragon] was

damaged,” he sued the United States and alleged that TSA broke the dragon during inspection.

Id. The district court construed the plaintiff’s complaint as “one sounding in negligence.” Id.

The United States moved to dismiss the plaintiff’s complaint under Fed. R. Civ. P.

12(h)(3) for lack of subject matter jurisdiction. Zeng, 2016 WL 8711090, at *4. Relying on

TSA’s SOP, the United States argued that the discretionary function exception barred the

plaintiff’s negligence claims because TSA’s SOP provides, inter alia, that a passenger’s

“baggage should be repacked ‘carefully and neatly’ but need not be repacked ‘in exactly the

same manner in which they originally were packed by the passenger.’” Id. (citation omitted). The

district court “decline[d] to hold that the TSA enjoys a broad protection over all claims

concerning ‘the manner in which checked baggage is screened and subsequently repackaged.’”

Id. (citation omitted). The district court explained that the plaintiff appeared to allege that TSA’s

officers broke the dragon due to their own carelessness or inattentiveness during inspection,

which is “not the type of tort that is protected by the [discretionary function exception].” Id. The

district court added that the plaintiff’s negligence theory sounded “more in ‘laziness or haste’ or

‘distract[ion] or inattentive[ness],’ than a ‘considered judgment grounded in . . . policy.’” Id.

(quoting Coulthurst v. United States, 214 F.3d 106, 109-11 (2d Cir. 2000)). Accordingly, the

district held that the complaint was not subject to dismissal for lack of subject matter jurisdiction.

Id. at *7.

As in Zeng, to determine whether the discretionary function exception bars Zandi’s

negligence claim, this Court “must assess the nature of the allegedly negligent actions, as those

are described in the [c]omplaint, to see whether those actions are subject to policy

considerations.” Zeng, 2016 WL 8711090, at *6 (citing Gaubert, 499 U.S. at 325, and

Coulthurst, 214 F.3d at 109); see also Young v. United States, 769 F.3d 1047, 1053 (9th Cir.

2014) (“[B]efore turning to Berkovitz’s two-step inquiry, we must first identify Plaintiffs’

‘specific allegations of agency wrongdoing.’ To identify the particular agency conduct with

which Plaintiffs take issue, we look to the allegations of Plaintiffs’ complaint.”) (internal citation

omitted). In his complaint, Zandi asserts a negligence theory and alleges that TSA did not

“properly car[e]” for his property during its inspection. (See Compl. ¶¶ 9-20.) Zandi also alleges

that several of his items were missing and certain items were scratched, dented, and punctured,

which allowed jam and citrus spread to leak throughout Zandi’s luggage. (Compl. ¶¶ 9-20.)

Like in Zeng, Zandi’s allegations suggest that TSA officers damaged and lost his property

due to their own carelessness or inattentiveness during inspection. This is “not the type of tort

that is protected by the [discretionary function exception].” Zeng, 2016 WL 8711090, at *6.

Instead, Zandi’s negligence theory “sounds more in ‘laziness or haste’ or ‘distract[ion] or

inattentive[ness],’ than a ‘considered judgment grounded in . . . policy.’” Id. (citation omitted).

Thus, the Court finds that Zandi’s negligence claim is not subject to dismissal for lack of subject

matter jurisdiction, and the Court denies the United States’ motion to dismiss.

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II. SUMMARY JUDGMENT

A. Legal Standard

Summary judgment is appropriate if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). On a motion

for summary judgment, the court must view the facts in the light most favorable to the non-

moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep’t of

Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses,

weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks

omitted).

B. Analysis

The United States moves for summary judgment on Zandi’s negligence claim, arguing

that Zandi has failed to raise a genuine dispute of material fact on the issue of causation.3 (Def.’s

Mot. at 6.) As explained below, the Court finds that Zandi’s claim should survive summary

judgment.

“[T]he plaintiff in a negligence action must . . . prove an actual causal link between the

defendant’s conduct and the plaintiff’s harm—that is, the plaintiff must prove ‘cause in fact.’”

Towe v. Sacagawea, Inc., 347 P.3d 766, 775 (Or. 2015) (quoting Or. Steel Mills, Inc. v. Coopers

& Lybrand, LLP, 83 P.3d 322, 327 (Or. 2004)). According to the Oregon Supreme Court,

3 Oregon law governs the merits of Zandi’s negligence claim. See Green v. United States,

No. 6:17-cv-128-JR, 2017 WL 3699782, at *3 (D. Or. June 28, 2017) (“Plaintiff’s negligence

action under the FTCA is determined in accordance with Oregon law.” (citing 28 U.S.C. §

1346(b)(1))).

“[w]hen the evidence shows two or more equally probable causes of injury, for not all of which

the defendant is responsible, no action for negligence can be maintained.” Simpson v. Hillman,

97 P.2d 527, 529 (Or. 1940). “In other words, negligence cannot be based on conjecture or

speculation.” Id.

Zandi argues that he has raised a genuine dispute of material of fact on the issue of

causation because “there is no other possible source of damage that is ‘equally probable.’” (Pl.’s

Resp. Def.’s Mot. at 3, quoting Simpson, 97 P.2d at 529). In support of his causation argument,

Zandi notes that (1) his “luggage . . . appeared completely intact and undamaged when [it]

passed through customs without any inspection, and then [was] in the possession of the TSA,”

(2) his “luggage had TSA inspection cards [inside of it] and multiple items wrapped with TSA

tape,” and (3) “TSA is the only agency tasked with luggage inspection.” (Pl.’s Resp. Def.’s Mot.

at 3.)

The United States responds that Zandi has failed to raise a genuine dispute of material

fact about whether TSA caused the loss of or damage to the items in his luggage, noting Zandi’s

admissions that (1) during his trip from Tehran to Los Angeles, his “luggage was handled by

third parties aside from the TSA,” and (2) he is “unaware of what the condition of the contents in

[his] checked luggage was at any point after [he] checked the luggage in Tehran until [he]

regained control of [the luggage two days after arriving] in Los Angeles[.]” (Milne Decl. Ex. 1,

at 4-6.) The United States also submitted a declaration from TSA’s lead transportation security

officer at Portland International Airport, noting that he does “not recall any significant events

occurring during the security screening,” he does “not recall any damage to any pieces of

baggage or their contents,” he “did not record any events in the . . . checked baggage screening

area logbook,” and “[i]f any damage to a piece of baggage or its contents had occurred, [he]

would have made an entry in the logbook or directed another TSA employee to make an entry.”

(Decl. John Thomas Harvey ¶¶ 1-9.)

Viewing the evidence in the light most favorable to Zandi and drawing all reasonable

inferences in his favor, the Court finds that there is a genuine dispute of material fact as to

whether TSA caused the loss of or damage to the items in Zandi’s luggage. Although Zandi did

not witness the TSA’s inspection of his luggage, “‘it is well settled that negligence and causation

may be proven by circumstantial evidence.’” Evi v. Wal-Mart Stores, Inc., No. 3:14-cv-01467-

YY, 2016 WL 5339678, at *3 (D. Or. July 12, 2016) (quoting Carlson v. May Dep’t Stores Co.,

527 P.2d 252, 253 (Or. 1974)); see also Trees v. Ordonez, 311 P.3d 848, 861 (Or. 2013)

(“‘Circumstantial evidence . . . may provide a basis from which the causal sequence may be

inferred.’”) (citation omitted); McDonald v. Sarriugarte, 124 P.3d 614, 616 (Or. Ct. App. 2005)

(holding that the trial court erred in granting summary judgment where a reasonable factfinder

could find that circumstantial evidence supported the plaintiff’s negligence claim).

The record here includes circumstantial evidence that TSA’s inspection caused the loss of

or damage to the items in Zandi’s luggage. The record reflects that Zandi packed the items in his

luggage with bubble wrap, that the bubble wrap was removed from the items, and that TSA had

exclusive control over Zandi’s luggage during the airport inspection. Although Zandi is unaware

of the condition of the contents in his checked luggage after he checked the luggage in Tehran,

there is no dispute that TSA inspected the luggage and there is no evidence to suggest that

another entity had any reason to (or did) open Zandi’s luggage. Based on this record, the Court

finds that a reasonable jury could find that TSA caused the damage to the items in Zandi’s

luggage. The Court therefore denies the United States’ motion for summary judgment. See

Thomas v. United States, No. 1:14-cv-02184, 2016 WL 6902357, at *5 (N.D. Ohio Sept. 26,

2016) (denying the United States’ motion for summary judgment on the ground that “there are

issues of material fact as to whether TSA agents caused cremains to spill from the urn in

Plaintiff’s suitcase” and noting that “TSA had exclusive control over [the plaintiff’s] checked

luggage while it was inspected at Cleveland Hopkins Airport” and “there is no evidence to

suggest that another entity had a reason to open the suitcase and handle the urn”).

CONCLUSION

For the reasons stated, the Court DENIES the United States’ motion to dismiss for lack of

subject matter jurisdiction and DENIES the United States’ motion for summary judgment (ECF

No. 16). The parties shall notify the Court by December 9, 2019, if they will be prepared to

proceed to trial on January 21, 2020.

IT IS SO ORDERED.

DATED this 5th day of December, 2019.

STACIE F. BECKERMAN

United States Magistrate Judge